# Loss of chance

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- Created by: Francesca Marks
- Created on: 26-03-17 15:46

## Steele textbook

- Based on quantification of risk. Hasnt been allowed so far for physical injury.
- Hotson- according to Reece, deterministic cases are appropriately dealt with in the all or nothing approach, where ones assesses whether damage itself was more probably than not caused by the defendants breach. Quasi indeterministic cases, are appropriately dealt with as loss of chance.
- Reece- Losses of chance in the law- Determinism if when their past uniquely determines their future. An event is indeterministic if it could not have been predicted at any time in the past, it cannot be predicted at present and cannot imagine how it would become possible in the future. In indeterministic case, it is not humanly possible to answer but for. It is a question of the limits of knowability. Reece said Hotson could be appropriately dealt with on the balance of probabilities. The Hotson case simply concerned a lack of evidence and was not appropriately dealt with in loss of chance.
- Gregg- Nicholls dissented and said it was stupid that you couldnt get damages if not over 50% already. His primary argument is a good one. Given that in a case like this a claimant will only ever have a 'prospect' of recovery, which can only be defined in terms of statistical chance, the whole purpose of a doctors duty is to safeguard the patients prospects. If the loss of prospects is not recoverable, then they duty serves no purpose, in respect of many conditions.

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## Steele textbook

- Other judgements did show problems with this. This case was different from previous cases of loss of chance in one significant aspect. At the time of the HoL judgement, it was still unclear if the patient was going to be a survivor. Although he had suffered significant pain, harm and distress, he had not lost his chance of survival. The chance had been diminished, rather than lost. The chance is in the future. This featured prominently in Phillips and Hales decisions.
- Rothwell- the line taken by the HoL is that actionable damage itself needs to be substantial. Risk was not actionable damage.
- Hypothetical third party negligence- Wright v Cambridge- 1st Dr negligent for referring to hospital late and the claimant having negligent treatment there. Lord Neuberger said that as a matter of law, hypothetical negligence on the part of a third party did not mean a defendant could avoid liability. He said the claimant was being deprived of an opportunity to sue such as (hypothetically) negligent third party. He left the door ajar to loss of chance in medical negligence.

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## Neuberger Loss of a chance and causation

- Chaplin loss of economic chance allowed as it was the essence of the contract. Hotson on the Chaplin analysis might be said that one of the purposes of getting medical attention promptly is to reduce the chance of necrosis setting in, and the plaintiff lost a 25% chance of that not happening. The House thought it was inappropriate in such a case.
- Can distinguish Hotson from Chaplin and Allied Maples. In Hotson the necrosis would or would not have developed and applying standard of proof to 75% evidence, it would have done. In Chaplin, we do not know whether the claimant would have made it to the final. May be policy reason as well. If Hotson were allowed, claimants who would normally be successful would almost always find themselves facing arguments for reducing damages to take into account risks. This was shown by Hale.
- Policy was used in two recent cases of White v Jones and Fairchild which may be said to have loss of chance resonances. Reece uses a coin to make distinction between the cases. Tossing a coin- the chance of it landing on heads is always 50%. So long as the coin is yet to be tossed it is impossible to know if itll be head or tail, the situation is indeterministic, there can be no right answer. If the coin has been tossed but is covered, the fact no-one may know the outcome does not prevent there only being one right answer. Because the coin has already been tossed, the outcome is deterministic. Future human decisions are indeterministic.

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## Neuberger Loss of a chance and causation

- because we cannot know how a human will behave. Where such uncertainties come into assessment of damages, an approach based on loss of chance is appropriate.
- On the other hand, medical outcomes are deterministic, they may be difficult or impossible to predict, but they are dependent on physical events which have already occurred. Such an outcome must be determined on the balance of probabiliites. Reece says 'the risk which it is reasonable to expect the plaintiff to bear is the risk of uncertainty in the evidence, not uncertainty in the world.' Medical evidence made it impossible to know if he was in the 25% so his claim had to fail.
- Another theory for loss of chance is Mark Cannon's chose in action theory. Damages for loss of chance should only be awarded where the loss of chance can be identified as loss of something that can fairly be called an asset. May be difficult to value and incapable of transfer but still has to be fairly categorised as an asset. The loss in Hotson was just an increase in the likelihood of the plaintiff contracting necrosis from 75% to 100%.
- Gregg- 10 years was the base mark because that is when youre said to have survived that type of cancer. It obviously has an element of arbitrariness, even if it has some medical basis. The question that should have been asked was 'what was the claimants life expectancy without the treatment, and how much would it have been increased by if he had the treatment?

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## Chris Miller Loss of chance revisited

- Your life expectancy is the age you have 50% chance of reaching. So if the claimants life expectancy was 43 but it would have been 47 with the treatment, he will have lost 4 years of life. If this was how it had been done, one of the majority may have switched. The outcome of Gregg can be seen as a victory for legal principle and consistency over fairness, and what is often referred to as compensation culture.

Chris Miller- Loss of chance revisited-

- Some of the majority in Gregg thought the issue was so complicated it should be resolved by legislation. Ironic resort to legislation should arise because it was arguably possible the case could be solved without going into loss of chance.
- Lord Hope of the minority came closer to the nub of the case. Damages were being sought for 'reduced prospects of complete recovery, which were a consequence of the physical injury caused by the delay.' He believed that 'by isolating the claim for the reduced prospect of recovery from the other consequences of the physical injury' the counsel for Gregg made the case 'appear unnecessarily complicated.' Why is it that this seemingly straight forward argument- negligent delay led to an enlarged tumour, which in addition increased pain and suffering, decreased the chance of surviving 10 years, could not command a majority?

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## Chris Miller Loss of chance revisited

- If there is a common factor in the minorities, it is that the legal cause of Greggs life expectancy was not settled.
- Miller thinks can give Gregg redress without revision of statute or common law. The chances existence must be accepted on the balance of probabilities, but the chance itself need not exceed 50%. The chance must be moored to a past injury for which liability has been established or a 'completed tort.' Uncertainty over future quantification of damages for an anticipated harm an imprecise exercise, but it must be distinguished from our uncertain knowledge of past events, which makes causation so problematic, hence the importance of completed tort. Once established on the balance of probability that the negligence caused the tumour to spread and that spread necessitated further treatment with all the intendent pain and suffering, that tort is completed. The chance of future harm now becomes firmly tied to this undisputed injury. Greggs counsel should have redoubled their emphasis on the role of the enlarged tumour as the source of future deteriation. It was accepted by the judge that prompt treatment would have prevented the spread of the tumour. The English law governing loss of chance is so complicated that attempting to use it to secure compensation for loss of life expectancy for a living claimant was a costly diversion.
- Lord Phillips was the most prepared to engage with statistical evidence. He was satisifed that a fallacy in the claimants statistical argument was enough to demolish his case.

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## Chris Miller Loss of chance revisited

- He didnt accept the model. The model gave only the statistical fate of a cohort but gave no information as to the factors which would determine what would befall and individual. It can hardly be doubted that the longer Gregg survives, the more favourably his actual condition compares with any alternative. Problem with Phillips is that even if Gregg lives to 99, the fact will not invalidate the model of the conditional probability of survival given prompt diagnosis. An estimate of probability of survival cannot be influenced by actual events. The fact he appeared to follow a particular route does not mean that he was bound to do so had treatment occured earlier. Actual events can of course influenced a prognosis. The fact of his survival hitherto should not influence estimates of the counterfactual probability of his life expectancy had diagnosis not been delayed.
- In the absense of other similarly hard information, which is specific to the claimant, estimates of his survival must remain purely statistical. And there is not justification for assuming that because Gregg survived for 10 years, that survival was inevitable and independent on the initial delay in treatment.

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## Sarah McQuillan Judicial belief in statistics as f

- Statistics alone cannot determine causation.
- The balance of probabilities- a possible chance needed in Philp and Gregg. Basic facts of the cases are similar. Recognition that balance of probabilities applies to belief probability and not fact probabiliy was central.
- The anomaly in applying the 50% probability to the patients health outcome- patients who are unfortunate to have lesser recovery chances than 50% are removed from legal protection for loss of chance when the balance of probabilities is applied as in Gregg. If the probability rule was applied instead to proof of causation of the link between negligence and worsened health, and not applied directly to statistical outcome, more patients would be accomodated in the legal system. The focus then would not be on the statistical health outcome, but the judicial belief in the reduction of the chance. This would ensure the Dr's duty would not be emptied of content to those patients who have an initial recovery chance below 50%. The standard of the balance of probabilities rule would remain consistent with orthodox interpretations, liability would still depend on a probability because a judge must believe, on the standard of probability, that the harm occurred.
- The role of epidemiological evidence in the cases- Majority in G relied on statistics when denying the claim.

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## Sarah McQuillan Judicial belief in statistics as f

- In Philp the loss of life expectancy was equated to a physical injury to facilitate the award for loss of opportunity. Was done on possibility standard. All or nothing damages rule was abandoned. Court implied damages for future injury should be awarded commensurate with a degree of possibility that such an injury would occur. Fennelly relied on the concept that any risk of future injury, no matter how low, is compensatable by the courts. Two problems with the case- 1) the case law relied on is not robust enough to make such strides and 2) the loss of life expectancy was equated to physical injury with opaque reasoning. The nub of the decision is that the court allowed a possible chance to satisfy the balance of opportunities. They were prepared to believe in statistical evidence without a physical injury.
- In Gregg Nicholls was the only judge to comment on statistics in the standard of proof in the general sense. He recommended that 'courts should be able to use figures and give them such weight as appropriate in the circumstances.' This was similar to P. Both recognise that particularistic evidence is desirable, but in the absense of such, statistics are useful. Such statistics are to be weighed in the overall determinaton of the court as to the probability of the claimants account of the cause of their injury. Neither place complete reliance on the statistical chance to determine causation alone.
- In academic research, statistics below 50% are viewed as equally relevant to satistics over 50% in satisfying the balance of probabilities.

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## Sarah McQuillan Judicial belief in statistics as f

- Should accept her argument as 1) justice- the need to legally protect patients who have an initial recovery chance below 50% and whose injury does not manifest physically. 2) standard of proof- statistics alone never determine causation, belief probability is always involved, so why are statistical chances below 50% removed from actionable harm?
- Need particularistic evidence on which to hang statistical evidence.
- Sienkiewicz v Grief embraced the use of epidemiological evidence. They said the judge must be certain on the balance of probabilities that the defendant actually caused the injuries. The major theme in this case was the need for particularistic, non statistical evidence connecting the epidemiological evidence to the facts.
- To change this the arbitrary 50% barrier must be removed in two ways. 1) must not be applied directly to the health outcome and instead focus on the probability of the loss of chance occuring. 2) the probability of the lost chance occuring does not need to be above 50% to be considered fact. Belief probability is added to the mix, and other expert evidence, to satisfy the balance of probabilities. A decision maker would need to be satisfied on the balance of probabilities that she believed in the reduction of chance.
- If the suggestion in this article were adopted, the judges may use statistics in reflecting initial chance of recovery as influential in their overall determination, as opposed to determinative of the causation question.

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## Seminar notes

- Failure of duty to warn stream- injury is the hurt to autonomy, duty is material disclosure from Montgomery, Breach- did they disclose or not? Dont apply Bolam or Bolitho. Causation- Chester relaxed but for.
- Loss of chance has no clear stream. Injury- loss of opportunity to get better (or favourable outcome) Duty- to promote the patients prospects of recovery. Breach- Do they fall below a reasonable standard? Causation- but for would they have lost the opportunity for a favourable outcome?
- Vivissictudes of life- have to just accept and move on. Like the fact you cant recover for emotional distress.
- Epidemiological evidence- take evidence and make statistics from it to use in cases. Still quite new. That is where Neuberger got his stats from.

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